Between Facts and Norms - Contributions to a ... - Blogs Unpad

143A Reconstructive Approach to Law IISocial power authorizedby sacred law1Legitimate powerSacred law sanctionedby social power1De facto valid law /Binding law and political powerFigure 1The constitution of law and politics.organized penal system provides the acts of the judiciary with acoercive character. Only in virtue of this instrumental function ofpolitical power are courts transformed into organs of a state. Lawthus owes to the state its function of stabilizing behavioral expectationsthat are generalized in temporal, social, and substantiverespects. We therefore distinguish the functions that law and powerfulfill for each other from the intrinsic functions the legal and powercodes fulfill for society as a whole.10As soon as law bestows a legal form on the exercise of politicalpower, it serves to constitute a binary power code (table 2). Whoeverpossesses power can give commands to others. To this extentlaw functions as a means of organizing governmental authority.Conversely, insofal' as power procures the observance of courtdecisions, it serves to constitute a binary legal code. Courts decidewhat counts as legal or illegal. To this extent, power serves toestablish the judiciary as a branch of the state.Only in modernity can political domination develop into legalauthority in forms of positive law. The contribution of politicalpower to the intrinsic function of law, hence to the stabilization ofbehavioral expectations, is to engender a legal certainty that enablesthe addressees of law to calculate the consequences of their ownand others' behavior. From this point of view, legal norms mustassume the form of comprehensible, consistent, and precise specifications,which normally are formulated in writing; they must bemade known to all addressees, hence be public; they may not claimretroactive validity; and they must regulate the given set of circumstancesor "fact situation" in terms of general features and connect